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Spahn & Rose vs. City of Dubuque Release and DismissalTHE CITY OF Dui Masterpiece on the Mississippi BARRY LIND I1 CITY ATTORN MEMORANDUM To: May r Roy D. Buol and Members of the City Council DATE: December 6, 2013 RE: Spahn & Rose vs. City of Dubuque This lawsuit is for the 2011 force main break in a sewer main under the old Public Works Garage where Spahn & Rose was leasing space for material storage. Spahn & Rose filed a lawsuit alleging $750,000 damage to its materials as a result of contamination from exposure to the sewage. The case was set for trial beginning December 3, 2013. Les Reddick, Esq. represented the City on behalf of the Iowa Communities Assurance Pool. Mr. Reddick reports that the case has been settled for $209,000 which is within the City's coverage under our ICAP policy, subject to City Council approval. Attached are the proposed release and dismissal. I recommend approval of the release and dismissal. BAL:tls Attachments cc: Michael C. Van Milligen, City Manager Gus Psihoyos, City Engineer Don Vogt, Public Works Director Les Reddick, Esq. F: \USERS \tsteckle \Lindahl \Spahn & Rose vs City of Dubuque \MayorCouncil_ ProposedRelease &Dismissal_120613.doc OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001 -6944 TELEPHONE (563) 583 -4113 / FAx (563) 583 -1040 / EMAIL balesq @cityofdubuque.org FULL AND FINAL RELEASE OF ALL CLAIMS The undersigned, SPAHN & ROSE LUMBER CO., and anyone claiming by or through them (collectively referred herein to as the "Releasor "), for and in consideration of the payment of the sum of Two Hundred Nine Thousand Dollars ($209,000.00), the receipt and sufficiency of which is hereby acknowledged, does hereby irrevocably and unconditionally waive, release, acquit, and forever discharge CITY OF DUBUQUE (including its elected and appointed officials in their individual and official capacities), the Iowa Communities Assurance Pool, American Risk Pooling Consultants, Inc., Public Entity Risk Services of Iowa, LLC and York Risk Pooling Consultants, Inc., together with their employees, volunteers, employers, principals, agents, insurers, attorneys, officers, directors, predecessors, subsidiaries, affiliates, successors and assigns (collectively referred to herein as the "Releasees "), of and from any and all liability, claims, demands, charges, complaints, controversies, actions, causes of action, and suits at law or in equity, of any kind or nature whatsoever, known or unknown, asserted or unasserted, suspected or unsuspected, including without limitation any claim which was or could have been raised by Releasor in a court of law or any other forum, and any claim under any local, state or federal statute, and any claim under any other statutory, administrative, constitutional, contractual, tort, common law or other legal or equitable theory whatsoever, which Releasor at any time heretofore had or claimed to have had or which Releasor may have or claim to have regarding any matter related or in any manner incidental to the Petition filed in the Iowa District Court for Dubuque County, Case No. 01311 LACV057680, claiming damages from an October 4, 2011 sewer main break (hereinafter collectively referred to as "claim" or "claims "). This Release by Releasor includes the complete and total satisfaction of any claim Releasor may have had against Releasees including without limitation claims for personal injuries, emotional distress, medical expenses, wage loss, lost benefits, loss of income, loss of services, loss of consortium, loss of property, damage to property, mental anguish, prejudgment interest, post - settlement interest, general damages, liquidated damages, exemplary damages, compensatory damages, punitive damages, infringement of civil /constitutional rights, unreasonable search, arrest without probable cause, false arrest, false imprisonment, assault and battery, unlawful arrest, malicious prosecution, use of excessive force, failure to properly investigate, failure to train, acquiescence in unconstitutional conduct, maintenance of an unconstitutional custom, policy or practice, failure to discipline, and expenses including but not limited to attorney fees and costs, together with any and all other loss, damage, and claim of every kind, nature, and description, resulting from or hereinafter resulting from the acts and omissions of the Releasees. As further consideration for the payment of the aforesaid sum, Releasor shall immediately dismiss the Petition filed in the Iowa District Court in and for Dubuque County, Case No. 01311 LACV057680 with prejudice. Releasor shall pay at its sole cost and expense all bills and expenses incurred by Releaser as a result of the claims and Releasees shall have no liability for same. Releasor further agrees to reimburse any person, insurance company, or other entity that has paid, on behalf of the Releasor, any bills or expenses incurred in connection with the claims and Releasees shall have no liability for same. 1 Releasor does hereby agree to indemnify, defend and hold the Releasees harmless from and against any and all liability, claims, demands, actions, causes of action and suits at law or in equity, for injuries, expenses, and damages known or unknown, made against or sustained by the Releasees, as a result of any amounts sought, claimed, or recovered by any insurer, person, governmental agency or other entity subrogated to the rights of Releasor, against the Releasees, or by any hospital, physician, medical provider or provider of services of whatever kind which provided medical, hospital, or services of any kind to the Releasor. Such indemnification shall include without limitation any and all attorney fees, court costs and any and all other costs and expenses. Releasor does hereby agree to indemnify, defend and hold Releasees harmless from and against any and all liability, claims, demands, actions, causes of action and suits at law or in equity, for injuries, expenses, and damages known or unknown, made against or sustained by Releasees as a result of any amounts sought, claimed, or recovered by any person who may now have or may assert in the future a claim for loss of any services or consortium as a result of the occurrence identified above. Such indemnification shall include without limitation any and all attorney fees, court costs and any and all other costs and expenses. Releasor acknowledges that the Releasees deny liability and responsibility for any and all claims, and Releasor further acknowledges that the payment of the foregoing sum shall not be construed as an admission of liability and is solely paid to preclude any additional litigation expenses. Releasor represents and warrants that it has not assigned all or any portion of the rights, titles, and /or interests in or with respect to the matters released hereunder, and that no trustee in bankruptcy or assignee for the benefit of creditors has any right to the Releasor's claims hereby released. Releasor also agree that the Releasees may use this Release against Releasor, Releasor's successors, or any other person, in court or elsewhere, to show that no person is entitled to any additional consideration should they ever attempt to assert any other claim for any reason whatsoever against the Releasees as a result of the occurrence. Releasor further agrees that it will be responsible for payment of any and all taxes, including but not limited to federal, state, and local taxes, as a result of the payment and receipt of the foregoing sum. Releasor further acknowledges that it fully understands the terms of the settlement and that it voluntarily accepts said sum for the purpose of making full and final compromise, adjustment, and settlement of any losses and damages. Releasor agrees that this Release shall in all respects be interpreted, enforced, and governed by the laws of Iowa. The language of all parts of this Release shall in all cases be construed as a whole, according to its fair meaning. If, after the date hereof, any provision of this Release is held to be illegal, invalid or unenforceable under present or future laws effective during the term of this Release, such provision shall be fully severable. In lieu thereof, there shall be added a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible, and be legal, valid and enforceable. This Release may be executed in multiple counterparts, and all counterparts executed by the parties, whether or not such counterparts shall bear the execution of each of the parties, shall be deemed to be, and shall be construed as one in the same agreement. 2 THE UNDERSIGNED HAS READ THE FOREGOING FULL AND FINAL RELEASE OF ALL CLAIMS AND FULLY UNDERSTANDS IT. RELEASOR: SPAHN & ROSE LUMBER CO. By Its STATE OF IOWA ) DUBUQUE COUNTY ) ss: On this day of , 2013, before me, the undersigned, a Notary Public in and for said State, personally appeared to me personally known, who being by me duly sworn, did say that he /she is the respectively, of SPAHN & ROSE LUMBER CO.; that no seal has been procured by the said corporation that said instrument was signed on behalf of said corporation by authority of its Board of Directors; and that the said as such officer, acknowledged the execution of said instrument to be the voluntary act and deed of said corporation, by it and by them voluntarily executed. NOTARY PUBLIC IN AND FOR THE STATE OF IOWA 3 IN THE IOWA DISTRICT COURT FOR DUBUQUE COUNTY SPAHN & ROSE LUMBER CO., Plaintiff, vs. CITY OF DUBUQUE, (42- 6004596W) ) ) ) ) ) ) ) ) ) Defendant. ) ) CITY OF DUBUQUE, ) ) Defendant /Third -Party Plaintiff, ) vs. ) ) RCM LABORATORIES, INC., ) d/b /a REGULATORY COMPLIANCE ) MANAGEMENT, ) ) Third —Party Defendant. ) Case No. 01311 LACV057680 DISMISSAL WITH PREJUDICE COMES NOW, Plaintiff, Spahn & Rose Lu nber Co. and hereby dismisses all claims against Defendant, City of Dubuque with prejudice. SPAHN & ROSE LUMBER CO., Plaintiff By: Christopher C. Fry O'Connor & Thomas PC Roshek Building 700 Locust Street, Suite 200 Dubuque, Iowa 52001 CERIIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing instrument was served upon all parties to the above cause or to their attorneys of record by enclosing the same in an envelope addressed to said parties or their attorneys whose names and addresses appear below this Certificate and delivering a copy to said parties or their attorneys or by mailing the same with postage prepaid, and by depositing said envelope in a United States Post Office Mailbox in Dubuque, Iowa on the day of , 2013. Signature Copy to: Les V. Reddick Kane, Norby & Reddick, P.C. 2100 Asbury Road Ste 2 Dubuque, Iowa 52001 ATTORNEY FOR CITY OF DUBUQUE CeCelia C. Ibson Ibson Law Firm 2629 Beaver Avenue Ste 3 Des Moines, Iowa 50310 ATTORNEYS FOR RCM LABORATORIES, INC.